IL Lethal Violence Order of Protection Act

Discussion in 'National Laws, Bills and Politics' started by UtiPossidetis, Mar 12, 2017.

  1. UtiPossidetis

    UtiPossidetis American

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    If Senate Bill 1291 passes, it provides for the court to forbid you from holding, owning, purchasing, possessing, or receiving additional firearms for the duration of the order; and to turn over to your local law enforcement agency any firearm you have, all concealed carry permits you hold, and your Illinois Firearm Owner’s Identification Card. For those of you who don’t live in Illinois, you don’t even want to know what that is.

    All of this can be mandated twithout your knowledge it’s happening. Your first inclination something is wrong occurs when the cops show up at your door.

    https://bearingarms.com/david-l/2017/03 ... he-week-2/
     
  2. diamondback

    diamondback Well-Known Member

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    It is IL. I would hope the governor would veto it, but I am not surprised if they have a veto proof majority.
     

  3. Phil1979

    Phil1979 Member Georgia Carry

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    So, firearms confiscation with no due process? Wouldn't this be something the U.S. Supreme Court would rule as unconstitutional?
     
  4. CoffeeMate

    CoffeeMate Junior Butt Warmer

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    [ame]https://www.youtube.com/watch?v=sF6IHn_onxY[/ame]
     
  5. CoffeeMate

    CoffeeMate Junior Butt Warmer

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    [ame]https://www.youtube.com/watch?v=A-hEewAKLZk[/ame]
     
  6. CoffeeMate

    CoffeeMate Junior Butt Warmer

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    [ame]http://www.youtube.com/watch?v=ujvBdRoIseM[/ame]
     
  7. CoffeeMate

    CoffeeMate Junior Butt Warmer

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    [ame]https://www.youtube.com/watch?v=xG_AsscmOUI[/ame]
     
  8. diamondback

    diamondback Well-Known Member

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    I would hope after Trump's nominee is confirmed they would call BS on this. Now it would be a 4-4 split.
     
  9. Buzz2569

    Buzz2569 Member

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    They lost 4 seats last November and the veto-proof supermajority.
     
  10. legacy38

    legacy38 Well-Known Member

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  11. gunsmoker

    gunsmoker Lawyer and Gun Activist

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    Legacy, we all know about the Lautenberg Amendment and the federal law on this subject.
    The federal law (Title 18, U.S. Code, section 922, (g)(9)) applies to people who HAVE HAD a chance to object to and counter the accusations made against them.
    In other words, there IS or WAS "due process of law" that came before these gun-owning citizens were stripped of their rights.

    This IL law, SB 1291, would strip away people's 2A rights without a hearing.
    At least, without a pre-deprivation hearing. Maybe it allows for some kind of hearing later, where the disarmed subject may ask for his gun rights back.

    Don't you think we need to talk about this?

    This is NEW.

    Pre-hearing deprivation of fundamental constitutional rights is NOT current federal law.
    It's NOT what the federal courts have upheld in the past (United States v. Emerson, 270 F.3d 203 (5th Cir. 2001)).
     
  12. Malum Prohibitum

    Malum Prohibitum Moderator Staff Member

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    Georgia has a similar bill pending, HB 541, and, as Gunsmoker discusses above, it is very unlike the federal law on this subject. If the Georgia bill were to pass (I do not expect it to pass), one would lose fundamental civil rights without due process.

    We must protect due process. This is fundamental in a system of ordered liberty.

    Jerry Henry and I discussed the differences between the Georgia bill and federal law the last time I was on GeorgiaCarry.Org radio (a couple weeks back?) if anybody wants to download the podcast and listen to us discuss the effects of HB 541 and the specific differences distinguishing the bill from already existing federal law, then please do so (is it up yet?)

    My first reaction was, "Ah, this is already federal law," but once I started reading the bill I realized how wrong I was and how dangerous this bill is.

    Thread on Georgia's pending bill, HB 541: https://www.georgiapacking.org/forum/showthread.php?t=272176
     
  13. legacy38

    legacy38 Well-Known Member

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    Where did I write anything about not needing to talk about this? I just offered up the existing federal law.

    Also, GA judges routinely order those subject to protective orders, even ex parte temporary orders, to surrender firearms.
     
    Last edited: Mar 14, 2017
  14. Savannah Dan

    Savannah Dan Cross-drawer

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    Thanks for your input Legacy.
     
  15. Malum Prohibitum

    Malum Prohibitum Moderator Staff Member

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    That's disturbing. I will look a little more closely at the law, but that does not appear to be one of the things the judge is authorized to order in OCGA 19-13-4, which lists 11 items, none of which are surrendering firearms.

    In another context (stalking TPO), the court of appeals flat out reversed the trial court's order to surrender firearms as being outside of the judge's authority under a different statute (stalking TPOs).

    You can read that case here:
    https://casetext.com/case/rawcliffe-v-rawcliffe

    I will add the caveat that I have not carefully researched this, so I will have to look into it further. This is my first blush 3 minutes of thought response.
     
  16. legacy38

    legacy38 Well-Known Member

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    I have never looked at the statutory authority for it, but I have seen numerous TPOs in which the respondent was ordered to surrendered firearms.

    I have also seen one instance in which the judge did not check that box, the respondent was caught carrying a gun as a result of a different, unrelated matter, and that case was being looked at federally due to the protective order. I don't know the end result.
     
  17. Malum Prohibitum

    Malum Prohibitum Moderator Staff Member

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    Well, as for your last comment (looked at federally) I must assume that was after notice and an opportunity to be heard? The federal law declares one is ineligible after a family violence order. The order does not have to say anything at all about guns. Here is what 18 USC 922(g)(8) says:

    (8) who is subject to a court order that—
    (A) was issued after a hearing of which such person received actual notice, and at which such person had an opportunity to participate;

    (B) restrains such person from harassing, stalking, or threatening an intimate partner of such person or child of such intimate partner or person, or engaging in other conduct that would place an intimate partner in reasonable fear of bodily injury to the partner or child; and

    (C)
    (i) includes a finding that such person represents a credible threat to the physical safety of such intimate partner or child; or

    (ii) by its terms explicitly prohibits the use, attempted use, or threatened use of physical force against such intimate partner or child that would reasonably be expected to cause bodily injury; or​
    The criticisms above of the Georgia and Illinois bills are that they accomplish this gun ban before the person being stripped of rights even has an opportunity to defend himself. The federal law does not do that.

    In other words, even if the judge says nothing in the order about guns (does not check the box), the federal law says it is a crime to possess firearms. This only happens, however, after notice and an opportunity to be heard, which means ex parte orders are not something that triggers ineligibility under federal law.

    Georgia's bill will not pass (well, not yet, with the current crop of legislators), but Illinois' bill very well might. These bills seek the goal of making one ineligible after an ex parte order. On the HB 541 thread, I question whether Georgia's bill would accomplish that (look at the other thread to see why), but that is certainly its goal.

    Above, with reference to state law, I was questioning whether a judge would have authority to order the person to surrender guns. As I mentioned, it does not appear to be listed among the things the judge may order. Federal law comes into play after notice and a hearing either way. Federal law does not come into play with respect to ex parte orders. Therefore, my initial conclusion is that an ex parte order should not include anything about firearms. It would hardly be the first time I had seen a judge act outside the law.

    I still have not researched this issue in depth, other than the few minutes it took to look at the statute and look up the one case I linked above reversing a judge's order to surrender firearms, so I could still be wrong about this.
     
    Last edited: Mar 15, 2017
  18. Malum Prohibitum

    Malum Prohibitum Moderator Staff Member

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    Note the federal statute would render one ineligible for a "stalking" order (see "stalking" in 8(B)) if it involves one of the intimate or family persons listed in the federal statute. The Georgia case I posted above says that a judge may not on a stalking order include a requirement about surrendering firearms. The federal law would still disarm that person by federal law, even though the judge has no authority to order the person to surrender firearms under state law.

    Interesting, huh?
     
  19. legacy38

    legacy38 Well-Known Member

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    The subject of that particular case has been involved in a long, drawn out ordeal, and has been involved in many cases. I don't recall the specifics of that particular order. I do recall that he was stopped for something in another county, had a suspended license, and the gun was found on him during the course of the arrest.